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Hernandez v. Kelly

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 19, 2009

JORGE HERNANDEZ, PLAINTIFF,
v.
KAREN KELLY, ET AL., DEFENDANTS.

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action.

On December 11, 2007, the court ordered the United States Marshal to serve plaintiff's amended complaint on three defendants. Service has been effected on two defendants. However, the Marshal was unable to effect service on defendant Mathis. On February 21, 2008, the court advised plaintiff that if he wished to proceed with his claims against defendant Mathis, he would be required to provide additional information to the court that would enable the United States Marshal to serve this defendant. The court instructed plaintiff to promptly seek such information through any means available to him and cautioned plaintiff that when service of a complaint is not made upon a defendant within 120 days after the complaint was filed, the court may be required to dismiss the plaintiff's claims against that defendant. See Fed. R. Civ. P. 4(m). The court also ordered plaintiff to submit within sixty days the documents necessary to effect service on defendant Mathis. After granting plaintiff two 90-day extensions of time, plaintiff submitted the necessary service documents. However, once again, based on the information plaintiff provided to the court the Marshal was unable to effect service on defendant Mathis.

Under the circumstances of this case, the undersigned finds that plaintiff cannot show good cause for the failure to effect service on defendant Mathis. Discovery has been open in this case since February 21, 2008, and plaintiff has had more than sufficient time to provide the court with the additional information necessary to enable the United States Marshal to serve this defendant. Accordingly, the court concludes that defendant Mathis should be dismissed from this action. See Fed. R. Civ. P. 4(m).

For the reasons discussed above, IT IS HEREBY RECOMMENDED that defendant Mathis be dismissed from this action without prejudice. See Fed. R. Civ. P. 4(m) and 41(b).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20090319

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